Opinion
H048935
01-21-2022
MARIA CASTELLANOS, Plaintiff and Appellant, v. ZBS LAW, INC. et al., Defendants and Respondents.
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. 20CV00157
BAMATTRE-MANOUKIAN, J.
This lawsuit concerns a deed of trust executed by appellant Maria Castellanos (appellant) in September 2006. On a date undisclosed in this record but prior to February 20, 2020, appellant initiated this action against ZBS Law, Inc. (ZBS), Countrywide Bank N.A. (Countrywide), Bayview Loan Servicing (Bayview), The Bank of New York Mellon as trustee (Mellon Bank), and Mers, Inc./Mortgage Electronic Registration Systems, Inc. (MERS) (collectively, defendants). After the court sustained a demurrer to the complaint with leave to amend, appellant filed a first amended complaint. Countrywide, Bayview, Mellon Bank, and MERS (collectively, respondents) filed a demurrer to the first amended complaint on September 28, 2020. On January 22, 2021, the court filed an order (the Order) in which it (1) sustained respondents' demurrer to the first amended complaint without leave to amend and (2) dismissed the first amended complaint with prejudice. Appellant challenges the Order here.
Respondents assert that appellant erroneously named Mortgage Electronic Registration Systems, Inc. as "MERS, INC./MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC." We also note that ZBS has asserted that its correct name is ZBS Law, LLP, but that it was erroneously sued as "ZBS Law, Inc."
Countrywide and ZBS were not included below as named parties demurring to the first amended complaint. Countrywide, however, is identified in the court filings on appeal as a respondent. We are also aware that Countrywide was involved as the lender in the underlying transaction resulting in the execution of the August 2006 deed of trust, under which MERS, acting solely as the nominee of Countrywide, was the beneficiary. ZBS joined in the position taken on appeal by respondents and incorporated by reference respondents' brief. In that joinder, ZBS also noted that it appeared that appellant had not taken issue with ZBS's filing below of a declaration of nonmonetary status, and that "[a]s a result, ZBS was no longer required to participate in the litigation as a matter of law since at least March 2020." (Original italics.)
We will affirm the Order.
I. PROCEDURAL BACKGROUND
Appellant filed her initial complaint on a date not disclosed from the record but prior to February 20, 2020, which was the date of filing of respondents' demurrer to the complaint. On July 27, 2020, the court sustained respondents' demurrer to the complaint with leave to amend.
Appellant thereafter filed a first amended complaint (hereafter, the Complaint). On September 28, 2020, respondents filed a demurrer to the Complaint. Although the Complaint is not part of the appellate record, respondents' demurrer disclosed that the dispute alleged in the Complaint arose out of a September 2006 deed of trust executed by appellant securing a loan of $652,000 encumbering real property located on 203 Meghann Court in Watsonville. The lender was identified as Countrywide, and the beneficiary named in the deed of trust was MERS, as nominee for Countrywide. In 2011, MERS assigned the deed of trust to of Mellon Bank. Thereafter, Zieve, Brodnax & Steele, LLP (which later became ZBS Law, LLP), became the substituted trustee under the deed of trust.
In the Complaint-according to what was stated by the court in its Order, since the Complaint is not before us-appellant alleged ten causes of action, i.e., claims for breach of contract, wrongful foreclosure, fraud and conspiracy to commit fraud, conversion, breach of covenant of good faith and fair dealing, slander of title, intentional or negligent infliction of emotional distress, obstructing due process, quiet title, and negligence in connection with arbitration.
Respondents' demurrer challenged the sufficiency of the Complaint as to each cause of action. Respondents argued further that (1) the Complaint was defective insofar as it included as a plaintiff Ramon Rodriguez Fuentes as attorney-in-fact, when he was actually improperly representing, as a nonattorney, appellant in the litigation; (2) the Complaint was "completely unintelligible and ambiguous such that it denie[d] Defendants a reasonable opportunity to respond to [it]"; and (3) each claim in the Complaint was precluded under the doctrine of res judicata because appellant had previously litigated a complaint with respondents (or with those in privity with respondents) involving facts which arose out of the same nucleus of facts in the present action. Appellant filed written opposition to the demurrer. After a hearing, on January 22, 2021, the court filed the Order sustaining respondents' demurrer to the Complaint without leave to amend and dismissing the Complaint with prejudice.
Appellant filed a timely notice of appeal.
II. DISCUSSION
A. Demurrers and Standards of Review
A party against whom a complaint or cross-complaint has been filed may file a demurrer to the pleading on particular grounds specified by statute, including the ground that the challenged pleading fails to allege facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) A demurrer does not "test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading." (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213, superseded by statute on another ground as noted in Californians for Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 227.) As such, "the facts alleged in the pleading are deemed to be true, however improbable they may be. [Citation.]" (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)
We perform an independent review of a ruling on a demurrer and decide de novo whether the challenged pleading states facts sufficient to constitute a cause of action. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) "In reviewing the sufficiency of a complaint against a general demurrer, . . . '[w]e treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
B. Sustaining of Demurrer Without Leave to Amend Was Not Error
Appellant challenges the Order. It is difficult for this court to determine the nature of that challenge from her appellate briefs. Appellant, among other things, (1) cites and discusses at some length a criminal case, People v. Wende (1979) 25 Cal.3d 436, which has no application to the civil appeal presented here (see In re Sade C. (1996) 13 Cal.4th 952, 978-983); (2) makes numerous references to a "[f]orensic [a]udit," which appellant admits was not part of the record below, and, accordingly, which cannot be considered by this court here (see Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 102 (Lona)); and (3) attaches records to her opening brief that were apparently not part of the documents before the trial court below, a practice which is improper (see Jozefowicz v. Allstate Ins. Co. (2019) 35 Cal.App.5th 829, 837, fn. 4 [court disregarded attachment of emails to reply brief that "were not before the trial court"]).
Specifically, appellant attaches to her opening brief a curriculum vitae of a licensed private investigator as exhibit B (to which she refers in her brief as a forensic audit). From the record before us, it does not appear that this document was part of the record below.
Additionally, appellant's briefs contain statements regarding particular factual and procedural matters that are not supported by citations to the record. In fact, appellant provides no citations at all to the clerk's transcript. Appellant's failure to include citations to the record in her appellate briefs constitutes a material violation of rule 8.204(a)(1)(C) of the California Rules of Court, which requires that every brief "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." "When an appellant's brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly made. [Citations.] We can simply deem the contention to lack foundation and, thus, to be forfeited. [Citations.]" (In re S.C. (2006) 138 Cal.App.4th 396, 406-407.) A further difficulty presented by appellant's violation of rule 8.204(a)(1)(C) is that without proper citation to the record, this appellate court is at a loss to know whether the alleged facts identified by appellant in her briefs were actually part of the record below, or are extraneous matters raised by the litigant that were not before, and thus not considered, by the trial court. "Factual matters that are not part of the appellate record will not be considered on appeal and such matters should not be referred to in the briefs." (Lona, supra, 202 Cal.App.4th at p. 102; see rule 8.204(a)(2)(C) [appellant's opening brief must provide "summary of the significant facts limited to matters in the record"].) We will therefore disregard appellant's factual contentions and any references to procedural matters below for which she has failed to provide citations to the record. (Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443, 451.)
All further rule references are to the California Rules of Court.
Moreover, appellant's briefs contain a number of conclusory statements, which were unsupported by citation to the record or to legal authority. These conclusory statements, and, indeed, the entirety of the matters presented in the appellate briefs, were made without attempting to relate them to the principal issues at hand in this appeal, which are (a) an identification of what was alleged by appellant in her Complaint; (b) whether those allegations were legally sufficient to support the causes of action alleged in the Complaint to survive demurrer; (c) the specific grounds upon which appellant contends the trial court erred in sustaining the demurrer; and (d) in what way specifically did the trial court err in denying leave to amend. "Conclusory assertions of error are ineffective in raising issues on appeal. [Citation.]" (Howard v. American National Fire Ins. Co. (2010) 187 Cal.App.4th 498, 523, citing rule 8.204(a)(1)(B).) As a panel of this court has explained: "We are not bound to develop appellants' argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived." (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.)
For example, appellant argues in her opening brief that (1) "her private Arbitration documents [that] were not given the credibility they deserve[d]"; (2) "[s]ubstantial equality and fair process should apply to administrative arbitration outside a court ordered mediator setting"; (3) "[a]ppellant(s) should have a right to argue a Set-off of the alleged mortgage debt and determine what the opposition has to say about it, at a tabled administrative meeting"; (4) "[t]he Originator therefore has a right to demand Set Off, and can do such in private Arbitration, but such meeting did not occur"; (5) "[a]s the Appellant presented thorough Arbitration document(s) which went un[ ]responded to by the [defendants, ] . . . the Appellant as Plaintiff in her action Defaulted the opposition for not answering the Arbitration documents"; and (6) "the lawyer(s) for the opposition do not prefer administrative Arbitration and actively argue to bypass it."
Beyond these substantial procedural deficiencies with her briefing, the critical failing of appellant is this: She has not ensured that the appellate record include the central document in this appeal, namely, the Complaint. Appellant failed to list the Complaint in her designation of the appellate record. The clerk's transcript does not contain the Complaint. After the clerk's transcript was filed and before she filed her opening brief, appellant made no effort to augment or otherwise seek an order including the Complaint the record. Respondents identified this procedural defect unambiguously and in detail in their respondent's brief. Appellant thereafter made no attempt to seek an order including the Complaint in the appellate record.
We note that there are at least two purported quotations from the Complaint in appellant's opening brief, which, of course, cannot be confirmed by this court because that critical pleading is not part of the appellate record.
It is the appellant's burden to overcome the presumption of correctness by demonstrating error, through an adequate record, requiring reversal. (Jameson v. Desta (2018) 5 Cal.5th 594. 609 (Jameson).) Thus, it is appellant who" 'has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].' [Citation.]" (Ibid., fn. omitted; see also Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)
In Bains v. Moores (2009) 172 Cal.App.4th 445 (Bains), the plaintiffs on appeal challenged, inter alia, the trial court's order sustaining the demurrers of two defendants to the second amended complaint. (Id. at p. 478.) The appellate court noted that the plaintiffs had "failed to include in the record either the operative complaint or the demurrers." (Ibid.) It therefore rejected the challenge, holding that the absence of the second amended complaint or the demurrers made it "impossible for this court to review the complaint de novo to determine whether it state[d] a cause of action." (Ibid.; see also Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1509 [cross-complainant's challenge to adverse judgment rejected because of his failure to include in the appellate record the cross-complaint and answer to cross-complaint].)
Bains, supra, 172 Cal.App.4th at page 478 is on point. Appellant here has failed to meet her burden of providing an adequate record by ensuring that the pleading central to the appeal, the Complaint, was part of the record before us. (Jameson, supra, 5 Cal.5th at p. 609.) That omission "mak[es] it impossible for this court to review the complaint de novo to determine whether it states a cause of action." (Bains, supra, at p. 478.)
We reiterate that appellant had multiple opportunities to take the necessary steps to ensure that the Complaint be included in the appellate record. The first opportunity- which she did not take advantage of-was for her to have included the pleading in her formal designation of the appellate record. Appellant could have also taken steps to ensure that the Complaint was considered after she filed her record designation and before she filed her opening brief. Moreover, a third opportunity was presented before appellant filed her reply brief, when she was clearly on notice from respondents of the importance of including the Complaint in the record. In their brief, respondents plainly stated, in the second paragraph of the introduction: "The appeal is defective because [appellant] violated the most fundamental rule of appellate review. Failure to provide an adequate record requires that the issues be resolved against the appellant. [Citation.] Here, the record fails to include the First Amended Complaint . . . that [a]ppellant asks the Court to review for adequacy. Failure to include the pleading that is the very subject of her appeal prevents the Court from considering whether the trial court erred in sustaining the demurrer without further leave to amend, and requires an affirmance. [Citations.]"
We acknowledge that appellant is representing herself in this appeal and has not had the formal legal training that would be beneficial in advocating her position. However, the rules of civil procedure apply with equal force to self-represented parties as they do to those represented by attorneys. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) Thus, "[w]hen a litigant is appearing in propria persona, [she] is entitled to the same, but no greater, consideration than other litigants and attorneys." (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
We will therefore reject appellant's challenge to the Order sustaining the demurrer to the Complaint without leave to amend.
III. DISPOSITION
The January 22, 2021 order sustaining respondents' demurrer to the first amended complaint without leave to amend and dismissing the first amended complaint with prejudice is affirmed.
WE CONCUR: ELIA, ACTING P.J. LIE, J.